BUSLJETA v. PLANDOME LEASING INC (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (O'Connell, J.), dated August 27, 2007, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Annmary Busljeta did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and, in effect, denied, as academic, the plaintiffs' cross motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, the defendants' motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Supreme Court, Nassau County, for a determination of the cross motion on the merits.

The defendants failed to meet their prima facie burden of showing that the plaintiff Annmary Busljeta (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The defendants' neurologist failed to explain or substantiate, with any objective medical evidence, the basis for his conclusion that the restrictions in cervical motion that were noted as part of his qualitative assessment were self-imposed (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  cf. Gonzales v. Fiallo, 47 A.D.3d 760, 849 N.Y.S.2d 182;  Style v. Joseph, 32 A.D.3d 212, 820 N.Y.S.2d 26).   Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

In light of our determination that the defendants' motion for summary judgment should have been denied, we remit the matter to the Supreme Court, Nassau County, for a determination of the cross motion on the merits (see e.g. Scavuzzo v. City of New York, 47 A.D.3d 793, 795, 850 N.Y.S.2d 526).

The defendants' remaining contention is without merit.